Wildlife and Countryside Link submission to the Defra Review of the Implementation of the Habitats and Wild Birds Directives

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1 Wildlife and Countryside Link submission to the Defra Review of the Implementation of the Habitats and Wild Birds Directives Wildlife and Countryside Link (Link) brings together 37 voluntary organisations concerned with the conservation and protection of wildlife, countryside and the marine environment. Our members practise and advocate environmentally sensitive land management, and encourage respect for and enjoyment of natural landscapes and features, the historic and marine environment and biodiversity. Taken together our members have the support of over eight million people in the UK and manage over 690,000 hectares of land. 1 This submission is supported by the following 21 organisations: Amphibian and Reptile Conservation Badger Trust Bat Conservation Trust Butterfly Conservation Buglife The Invertebrate Conservation Trust Friends of the Earth England The Grasslands Trust Hawk and Owl Trust Humane Society International The Mammal Society Marine Conservation Society Plantlife People s Trust for Endangered Species Pond Conservation Royal Society for the Protection of Birds Salmon & Trout Association Whale and Dolphin Conservation Society Wildfowl & Wetlands Trust The Wildlife Trusts Woodland Trust WWF-UK 1. Summary and recommendations 1.1 The Habitats and Wild Birds Directives (the Nature Directives 2 ) have provided valuable protection for Europe s rarest and most threatened habitats and species for over 30 years. In doing so, they have played an important role in securing vital ecosystem services benefiting human well-being. This includes providing clean water, regulating climate through carbon storage, flood prevention and recreation. 1.2 Effective implementation of the Nature Directives will be required if we are to meet our national and international biodiversity commitments. 1 Wildlife and Countryside Link is a registered charity (No ) and a company limited by guarantee in England and Wales (No ). 2 EU Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora and EU Directive 2009/147/EC on the conservation of wild birds (codified version) 1

2 1.3 The Habitats Directive regime for the protection of Natura 2000 sites and European Protected Species (EPS) provides a practical framework for sustainable development. It applies a set of tests to all activities and developments to ensure that all those which do not adversely affect sites and species of European importance may continue, and that those which cannot be progressed without such effects are only permitted if and when strict tests are passed (to ensure that such damage is unavoidable, is warranted by the importance of the development or activity and can be compensated for). Too often presented as a barrier to socio-economic activity, the Directives instead provide a key test for sustainable development. 1.4 The transposition of the Birds and Habitat Directives, although incomplete, is very accurate, and we find no evidence of gold-plating. 1.5 In respect of both Natura 2000 sites and EPS, key flaws in implementation are associated with data and evidence gaps, lack of clarity or engagement in process, and lack of competence and/or capacity in relevant organisations. Recommendations 1.6 To address the issues identified in our submission, and to improve implementation of the Nature Directives in England in ways that benefit both nature conservation and facilitate more streamlined development, we recommend that: The Government recognises the importance of the Nature Directives in delivering healthy ecosystems and biodiversity, specifically the Government s commitments to the Convention on Biological Diversity (CBD) and the EU Biodiversity Strategy, and their commitments in the The Natural Choice and Biodiversity2020. The Government acknowledges the valid role of the Habitats Directive regime for the protection of Natura 2000 sites and EPS as a key test for sustainable development. Following on from this, it should also acknowledge the regime s role in highlighting the very few cases where a poorly conceived proposal would result in damage on a scale which cannot be justified by the proposal s public interest benefits. The Government should take this opportunity to restate its commitment to the conservation of sites and species of European importance, to promote the value of these natural assets (both intrinsic and economic), to promote best practice solutions in the handling of development which may impact upon these and other biodiversity assets, and to increase pressure upon those developers and competent authorities which fail to embrace best practice approaches. The Government focuses on win:win solutions which will deliver substantial improvements in the implementation of the Habitats Regulations in respect of both development and nature conservation: o As important as the handling of the Habitats Regulations process itself is the stage in the development process at which environmental considerations in general, and the Habitats Regulations in particular, are considered. If, as is the case for technical and economic factors, environmental considerations were considered from the outset many impacts (and the associated need for information and assessment etc.) could be at best avoided and at worst substantially reduced. o Data and evidence deficiencies present a barrier to both effective conservation and effective regulation: gaps should be prioritised and addressed (including the securing of effective and accessible post-construction monitoring data to facilitate a move from 2

3 a precautionary to a more evidence-based approach to impact and assessment and decision making) o The failure by the UK to define favourable conservation status for habitats or species (both at national and appropriate local/site scales), and an associated lack of clarity regarding the conservation objectives/status against which impacts are to be considered, is a related and significant issue which locks decision-makers into a precautionary approach to decision-making. This should be addressed as a matter of urgency, in order to facilitate evolution towards a more evidence-based approach to decision-making in respect of both EPS and Natura 2000 sites. o Clear and authoritative guidance is essential, and is desired by developers, statutory bodies and NGOs alike. Relevant guidance should be streamlined, improved and updated, and key gaps in current guidance should be addressed. o There are many examples of innovation and best practice, a number of which involve adoption of a strategic approach to planning and to avoidance, mitigation and (where appropriate) compensation of impacts. These should be promoted and their lessons should be applied across the board. o Capacity to engage with Habitats Regulations process amongst developers, competent authorities and Natural England (as well as other stakeholders) in terms of resources and relevant legal and ecological expertise is key to the effective application of the Habitats Regulations to development, and thus to achieving the best possible outcomes for both nature conservation and sustainable development. Resources are required to secure this, and standards and knowledge need to be raised, reviewed and enforced within the private sector, local authorities and in Natural England. 1.7 In respect of Natura 2000 sites, a major single cause of uncertainty and risk for developers and investors is a lack of clarity about the location and sensitivities of sites. Significant steps towards delivery of a coherent network of sites (in particular in the marine environment) are therefore required as a matter of urgency. 1.8 In respect of EPS there is a risk of a mismatch between the requirements for planning consent and those for gaining a licence. We would therefore recommend that the process for dealing with EPS licensing in the context of planning permission should be reviewed. We also recommend that EPS enforcement and sentencing be reviewed. 2. Introduction 2.1 Link welcomes the opportunity to submit evidence to this review. We also welcome the support that the Secretary of State gave to achieving the aims and maintaining the integrity of these Directives at the launch of the review. 2.2 The Nature Directives have provided valuable protection for Europe s rarest and most threatened habitats and species for over 20 years. 3 4 In doing so, they have played an important role in securing vital ecosystem services benefiting human well-being. This includes providing clean water, regulating climate through carbon storage, flood prevention and recreation. 2.3 It is clear from The Economics of Ecosystems and Biodiversity 5 and the UK National Ecosystem Assessment 6 that the natural environment is providing us with a vital range of services that 3 Donald P et al (2007), International conservation policy delivers for birds in Europe. Science, 317: and Dodd, A (2008) EU Nature Directives: rights, responsibilities and results. Environmental Law and Management, 20: Maclean, N. (ed.) Silent Summer. The State of Wildlife in Britain and Ireland. Cambridge University Press. 5 UN, 2010, The Economics of Ecosystems and Biodiversity: 6 UNEP-WCMC, 2011, UK National Ecosystem Assessment: 3

4 underpin our economy and our well-being. In many cases these benefits are undervalued, but in spite of this a recent assessment of the benefits of Sites of Special Scientific Interest (SSSIs) (which underpin all terrestrial Natura 2000 sites in England) demonstrated that: targeted action and investment in bringing these sites back into good condition delivers a wide range of benefits which are highly valued by the public; every 1 spent on maintaining SSSIs delivers benefits to society worth over 8, and; that the higher levels of protection from development and land use change afforded to Natura 2000 sites in particular enhances the conservation benefits and ecosystem services that these sites deliver In addition, we have a clear responsibility to conserve threatened species and habitats. A European survey of attitudes to biodiversity 8 showed that 90% of UK respondents agreed that halting biodiversity loss is a moral obligation, and in the latest EU barometer survey 73% of UK respondents agreed that protection of the environment can boost economic growth Effective implementation of the Nature Directives will be required if we are to meet our international biodiversity commitments. The implementation of the Directives is an explicit goal of the European Biodiversity Strategy 10, and the Directives will also play a key role in delivering against Aichi targets 11 and 12 that were agreed as part of the CBD Strategic Plan at Nagoya in For example, the Global Strategy for Plant Conservation was endorsed by the UK Government as part of this Plan; the Important Plant Areas (IPAs) programme sits at the heart of the GSPC and in England 56 IPAs are protected under the Habitats Regulations as part of the Nature 2000 Network. 2.6 The Nature Directives will also play a pivotal role in helping to deliver outcomes 1, 2 and 3 of the Biodiversity 2020, 11 not least because of the significant overlap between EPS and Natura 2000 habitats and species with the priority species and habitats in England. However, despite the valuable role that the Nature Directives have played in protecting biodiversity, particularly the importance of the Natura 2000 network in conserving some of our most important sites, nature is still in trouble. In England, the latest assessment in 2008 showed that 18 out of 42 priority habitats and 120 out of 390 priority species were in decline. 12 When the UK last reported on its implementation of the Habitats Directive in 2007 it found that of species listed under the Directive only 26% were in favourable conservation status, and 18% were improving; in relation to habitats, a mere 5% were in favourable condition, although 48% were considered to be improving. 13 We need a step change if we are to meet our 2020 mission to halt overall biodiversity loss. 2.7 In seeking improvements to the implementation of the Nature Directives we believe that Defra should be looking to secure positive management of important sites, species and habitats. This will reflect the commitment in The Natural Choice to pass on to future generations a natural environment that is in a better state than the one we inherited. 7 Defra Benefits of Sites of Special Scientific Interest Report, ublisher=1&searchtext=0768&sortstring=projectcode&sortorder=asc&paging=10#description 8 Attitudes of Europeans towards the issue of Biodiversity, European Commission December Attitudes of European Citizens towards the Environment, European Commission July Biodiversity2020: A strategy for England s wildlife and ecosystem services 12 HMSO (June 2011), The Natural Choice: securing the value of nature 13 JNCC (2007), Second report by the United Kingdom under Article 17, Conservation Status of Species and Habitats listed on the Annexes of the Habitats Directive Summary of UK Results 4

5 2.8 This review of the implementation of the Nature Directives is being carried out in advance of the Rio+20 United Nations conference on Sustainable Development. We urge Defra to ensure that all three pillars of sustainable development economic, social and environmental are properly addressed. A key test of this review is therefore whether it successfully identifies improvements in implementation that actually help to deliver favourable conservation status for species and habitats, as well as improvements the process for developers. 3. Setting the context 3.1 The Chancellor s Autumn Statement and the Defra review appear to be founded on an assumption that the implementation of the Nature Directives in the UK goes beyond our minimum legal obligations, and that the resulting gold-plating may present an unnecessary burden on businesses. However, neither term (burden or unnecessary) is defined, nor is the link to business costs substantiated; the Chancellor s claim that EU rules on habitats impose ridiculous costs on business contradicts an independent analysis of the economic impacts of EU legislation in the UK In the context of the ongoing declines in many habitats and species, the imperative of halting and reversing declines (as enshrined in UK Government policy, national and international targets) and the value of biodiversity and wider ecosystem services, the need for protection is clear. The Nature Directives grew out of a recognition that past attempts by national Governments to halt the loss of the most important and vulnerable habitats and species were failing. There was therefore a need to effectively protect what little of the best was left, as well as to ensure a level playing field across Europe, so that one Member State could not gain advantage over another at the expense of species and habitats. There is clear evidence of the efficacy of the Nature Directives in contributing to effective conservation of threatened habitats and species, and as such their full and effective implementation is widely acknowledged as a cornerstone of, and prerequisite for, effective biodiversity policy and delivery. We would therefore argue that the role of the Nature Directives in conserving habitats and species is entirely necessary. 3.3 The Nature Directives provide a practical framework for sustainable development. They apply a set of tests to all activities and developments to ensure that all those which do not adversely affect sites and species of European importance may continue, and that those which cannot be progressed without such effects are only permitted if and when strict tests are passed (to ensure that such damage is unavoidable, is warranted by the importance of the development or activity, and can be compensated for). Too often presented as a barrier to socio-economic activity, the Directives instead provide a key test for sustainable development. 3.4 It is important that the scale of the impact of the Directives on development (and other activities) not be exaggerated. When compared to all other European Member States, the UK has designated the smallest percentage of its national area as Natura 2000 sites (just 7.2%). 15 Natural England figures would suggest that of the 26,500 land use consultations received by them each year, less than 0.5% result in an objection by Natural England under the Habitats Regulations. Therefore, the area subject to designation is small, the proportion of total land use applications affected is very small and the proportion where significant effects and/ or compensation is required is even smaller. 14 Davidson Review on implementation of EU legislation (2006). Commissioned by Department for Business, Innovation and Skills European Commission Natura 2000 snapshot, January

6 3.5 Furthermore, in the small number of cases where significant issues are reported to arise, there is a need to differentiate between a) those cases where application of the Habitats Regulations is complex and may be problematic, b) those cases where application of the Habitats Regulations is not in fact the major cause of costs or delays, and c) those cases proposals where the Habitats Regulations play an important role in identifying poorly conceived developments which will have adverse impacts which cannot be justified in the context of public interest objectives. 4. Transposition of the Birds and Habitats Directives in the UK 4.1 The Nature Directives have been transposed into English law through a number of legal instruments over the past 33 years. 16 Effective implementation depends first and foremost on clear and robust transposition designed to deliver the purposes of the Nature Directives. Such transposition helps create certainty and confidence in all users. In this regard, the UK Government has been only partially successful and has frequently had to respond to criticisms of its transposition through piecemeal amendments, often rushed through without the benefit of appropriate levels of public consultation, and thus requiring further amendments. 4.2 This need for ad hoc amendment has itself been a cause of ongoing uncertainty for all those who interact with the legislation as it has resulted in irregular moving of goalposts, perhaps most significantly in respect of EPS, where the law has been subject to frequent amendments in recent years. 4.3 The most significant recent changes resulted from the European Court of Justice (ECJ) judgment in Case C-6/04 Commission vs United Kingdom (October 2005): o Application of the entirety of the Nature Directives requirements to the offshore marine environment from ; o Application of articles 6(3) and 6(4) to land-use plan systems; o Significant amendments to the EPS regime which took several attempts to finally resolve through amending regulations. 4.4 As a result, transposition in respect of the protection of Natura 2000 sites and EPS now follows or draws heavily on the wording of the Nature Directives, and we would argue therefore that there is no evidence of gold-plating in the transposition of these provisions. The submission by WWF will address this issue in some detail, and in respect EPS this conclusion is supported by a legal opinion commissioned by the RSPB in support of the Link response to the Defra review (see Appendix A). 4.5 Indeed, it can be argued that far from gold-plating, the opposite is true. Considerable reliance for transposition continues to be placed by the Government on policy guidance rather than appropriate, explicit and proportionate transposition; this leaves the Government unnecessarily vulnerable to infraction, e.g. the protection of potential SPAs and protection of areas identified as compensatory measures under Article 6(4) of the Habitats Directive. It is questionable whether relying on policy is an effective form of transposition in light of ECJ Case C-98/03 (Commission v Germany) which requires implementing measures to be clear and precise, and in the context of the current emphasis on reducing guidance begs a question as to the position if such guidance is revoked. Furthermore, clear gaps in transposition of the Natura 2000 sites, 16 In particular: Wildlife and Countryside Act 1981 (as amended), Conservation of Species and Habitats Regulations 2010 (as amended), Offshore (Marine Conservation) Regulations 2007 (as amended), Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 (as amended) 17 While this principle was already established in 1999 in relation to the Habitats Directive in England and Wales in the Greenpeace 'offshore' case (R v Secretary of State for Trade & Industry & Ors, ex parte Greenpeace Ltd), Case C- 6/04 confirmed the position with regard to the territory of the EU"; 6

7 EPS and wider requirements of the Nature Directives remain which result in the Government being unable to realise the potential of the Nature Directives to support its objectives in respect of the natural environment, in particular restoring biodiversity and putting in place a robust framework for the delivery of landscape scale conservation 18 : Failure to transpose the habitat conservation (management, restoration and creation) measures set out in the Nature Directives to put in place an integrated framework to secure the recovery and maintenance of the UK s wildlife to favourable status. In particular: 1. Article 3 of the Birds Directive (habitat conservation measures); 2. With the exception of the classification of SPAs, Article 4 of the Birds Directive in respect of special conservation measures per se as part of an integrated package and the second sentence of Article 4(4) in respect of the protection of Annex I and migratory species outside SPAs; and 3. Article 10 of the Habitats Directive. Failure to transpose in the terrestrial and inshore environment the requirements of Article 6(2) of the Habitats Directive to take appropriate steps to avoid deterioration and disturbance of habitats and species of Community interest in SPAs and SACs; and Failure to set clear conservation objectives for the favourable conservation status of species and habitats protected by the Nature Directives, including translating these to protected area level. 4.6 In relation to cetaceans, the Whale and Dolphin Conservation Society have commissioned a legal review of the efficacy of provisions for the protection of cetaceans, including those under the Habitats Regulations. This is due for imminent publication, and concludes that whilst the legislation covering the protection of cetaceans and their habitats in the UK has changed considerably in recent years, it does not provide a comprehensive and ecologically sound structure to ensure the long term favourable conservation status of our whales, dolphins and porpoises (see Appendix B). 4.7 We consider that Defra s review should provide an opportunity to address gaps in transposition of the Nature Directives to consolidate and provide clarity, and to ensure that the Nature Directives objectives can be met. 5. Data and Evidence 5.1 There are fundamental barriers to both effective conservation and the evidence-based assessment of potential impacts upon those associated with development. These arise from limited understanding of the distributions, populations/extent, function/dynamics/behaviour, conservation status and sensitivities of habitats and species, and lack of clarity on the conservation objectives or outcomes required to maintain or achieve favourable conservation status. 19 This is an issue both on land and at sea, although the limits on understanding in respect of both habitats and species are an order of magnitude greater in the marine environment. 5.2 The failure by the UK to define favourable conservation status for both habitats and species, both at national and appropriate local/site scales, and an associated lack of clarity regarding the 18 See Dodd et al (in press) Protected Areas and Wildlife in Changing Landscapes: The Law and Policy Context for NGO Responses to Climate Change in the UK. Journal of International Wildlife Law and Policy. 19 The term favourable conservation status is not used in the Birds Directive, but the EC has equated this Habitats Directive term to the requirements of Article 2 of the Birds Directive which requires Member States to take the requisite measures...to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level. 7

8 Sites conservation objectives/status against which impacts are to be considered, is a related and significant issue. 5.3 An understanding of where Natura 2000 sites are located is fundamental to their effective and streamlined protection. On land, the network of SPAs and SACs is substantially complete, although site designation for a number of bird species is incomplete and the results of the Government approved 2001 SPA review remain largely unimplemented. At sea there are substantial gaps in the network of SACs (for example the European Commission has made clear that additional sites are required for a number of species including harbour porpoise, bottle-nose dolphin and harbour seal), and, 31 years after the deadline for implementation of the Birds Directive in the UK, the SPA network at sea remains substantially incomplete. There are just two marine SPAs in England, which both lie in inshore waters and between them protect just two species in the non-breeding season. Maintenance extensions to breeding colonies, although agreed by Government since 2008, have yet to be classified in England (although these have been classified in Scotland). And, in common with the rest of the UK, there are no SPAs to protect the feeding areas of any of UKs internationally important breeding seabirds. 5.4 This means that at sea, strategic development areas (e.g. the zones for offshore wind development and oil and gas licensing rounds), are allocated in the absence of adequate information, in particular about mobile species. This means that developers head out to sea blind. They then invest in surveys which often result in the identification of aggregations of these species, the importance of which it may be hard to determine given the lack of contextual information about their distributions and densities in the wider marine environment. In some cases, the aggregations found in this way are of such significance that they require designation, as was the case for the London Array windfarm development (which is presented as a case study in the RSPB s submission). This situation poses an unacceptable risk to marine habitats and species and to expedient assessment of marine development proposals. It also represents a failure to meet Government aspirations and responsibilities on both nature conservation and sustainable development. 5.5 In order to start to address this issue NGOs have long called for a Government-led, national integrated marine survey programme to harness the efforts of Government, developers and others to identify and address the gaps in our knowledge. Costs of surveys at sea are significant, but much could be achieved in terms of economies of scale through better coordination and redistribution of existing effort and investment, and improved access to the data that already exists. Furthermore, the reduced uncertainty and investor risk associated with the clarity that designation of a coherent Natura 2000 network at sea would provide could also deliver significant benefits for Government and industry. 5.6 In the meantime, sensitivity mapping to aid the strategic siting of development has been shown to be a useful tool on land, and could be utilised at sea (albeit that their reliability will be affected by the same lack of data). 5.7 Once sites have been identified and designated, there must be clarity regarding the site-specific conservation objectives for the features for which the site is protected. Such objectives are a fundamental prerequisite for the application of the Habitats Regulations tests to any development proposals which may affect them. Yet even on land, where data is often available to inform such objectives, they are too often entirely generic in nature, often failing even to clarify whether the feature is in favourable condition and is to be maintained, or in unfavourable condition and therefore in need of restoration. 8

9 5.8 The importance of data and clarity of objectives in evidence-based assessment and decisionmaking at every stage of the tests that are applied by the Habitats Regulations to development proposals which have the potential to impact upon Natura 2000 sites and features cannot be overstated from assessment of likely significant effect to assessment of a case for imperative reasons of overriding public interest (IROPI). 5.9 Where data is unavailable and objectives are unclear, the precautionary approach (which applies to the implementation of European Directives) is the logical and rational response to uncertainty. However, in many cases its continued use is indicative of a failure to address that uncertainty over time. For example, the failure by competent authorities to require adequate post-construction monitoring of impacts, and the efficacy of mitigation and/or access to the results of such monitoring, means that actual (as opposed to theoretical) impacts remain unquantified over time and that decisions remain locked in a precautionary system; again an issue which is especially acute in the marine environment. The precautionary approach will always have a role to play where uncertainties persist, but in many cases appropriate use of conditions on consents for development should be able to secure relevant, compatible and comparable data on impacts which can be used to move from a precautionary to a more evidence-based approach to decision-making For example, the monitoring packages associated with the creation of compensatory intertidal habitats in England, designed and applied with the input of both Natural England and NGO stakeholders, have substantially improved our understanding of managed realignment. 20 This has facilitated improved site design and management and has reduced the risks to both the features affected by port development and flood defence works, and to the developers and agencies delivering the schemes. Species 5.11 All EPS are protected for good reasons; some are rare and restricted, while for others England has an internationally important proportion of the European population. All EPS are potentially vulnerable to development and land use change The failure to assess and to define favourable conservation status at national level, or at the spatial levels appropriate for different species, lies at the heart of the current approach to their protection: without a handle on what favourable conservation status looks like, and therefore what is required to achieve it, a precautionary approach must be adopted based on a goal of no net loss (as it is not known what scale of loss might prove significant). Therefore, steps to assess and define favourable conservation status at the national and other appropriate spatial scales for EPS is a prerequisite for the effective conservation of these species, and for the development of a more streamlined and less precautionary approach to development impacts Data and knowledge of populations and ranges of some terrestrial EPS is improving, (e.g. our knowledge the bat populations and ranges of some bat species has improved due to volunteer efforts in the last decade), but there are still significant gaps and some species, e.g. great crested newts and Bechstein s bats, where knowledge on populations and trends is incomplete. Furthermore, in most cases knowledge of meta populations is inadequate to fully understand the impact of developments on conservation status. Steps to better define favourable conservation status should therefore be balanced with the need for robust data and spatial systems (e.g. sensitivity mapping) to back up the assessment process, and an understanding of the limitations of the available data. 20 Such packages have been developed by a number of port developers and the Environment Agency. 9

10 5.14 Definitions of favourable conservation status are also going to be needed to inform and to guide progress towards Biodiversity2020 outcomes Monitoring and surveillance of national populations of EPS and the quality of the supporting habitats needs to be improved if attainment of favourable conservation status is to be adequately assessed The effectiveness and impact of EPS interventions is often unknown and needs to be backed up by research and monitoring. For example, there is currently no evidence to show what happens to bat roosts that are excluded from houses. 22 Similarly, the efficacy of EPS mitigation measures required by Natural England is uncertain, and it is therefore essential that postconstruction monitoring and reporting standards be improved to feed into development of good practice for future mitigation 6. Process 6.1 In the application of the Habitats Regulations to development, there must be a clear and transparent process that is understood by all parties. This is of course linked not only to the process itself, but also to the standards of evidence available to support decision-making and the competence of developers and their consultants, Natural England, competent authorities and other stakeholders. The Habitats Regulations are helpful in this regard, setting out a clear step-wise process for the assessment of development proposals in relation to potential impacts on both Natura 2000 sites and on EPS. 6.2 The role of authoritative guidance is vital in bringing clarity and consistency to the assessment process, and calls for improved guidance from both industry and the nature conservation sector. The impact of the cancellation of a very substantial amount of planning guidance through planning reforms and the forthcoming National Planning Policy Framework is therefore of significant concern. The previous body of RPGs, PPGs, PPSs and Circulars evolved over several decades, in response to the desire to make the planning process as clear, robust, certain and transparent as possible. The importance of up to date and unambiguous guidance is recognised by many stakeholders, including the Local Government Association, and has been reinforced by the ECJ and domestic courts. 23 The decision to strip away the vast majority of this guidance will undermine the decision-making process and cause confusion, delay and contrary to the Government s intentions more cautious decision-making as decision-making authorities default to refusal. This, in itself, is likely to prompt lengthy and expensive appeals and legal challenges. We urge Defra to confirm that decision-makers should follow the body of EU guidance on the Habitats Directive and ensure that appropriate domestic guidance relating to the marine and terrestrial environments is (re)-instated as soon as possible. 6.3 As important as the handling of the Habitats Regulations process itself is the stage in the development process at which environmental considerations in general and the Habitats Regulations in particular are considered. Too often this is not considered until development proposals are already finalised, including siting, design, timing and methods of construction etc. If, as is the case for technical and economic factors, environmental considerations were 21 Biodiversity2020 Outcome 3 states that By 2020, we will see an overall improvement in the status of our wildlife and will have prevented further human-induced extinctions of known threatened species 22 This gap in knowledge has been recognised and research has recently been commissioned for one bat species. 23 See Morgue (referring to the value of EU Guidance on the Habitats Directive, R (on the Application of Bown) v Secretary of State for Transport (referring to the need to update PPG 9 (Nature Conservation)) and R (on the application of Simon Woolley) v Cheshire East Borough Council & Millennium Estates Ltd (referring to the value of ODPM Circular 06/06) 10

11 considered from the outset, many impacts (and the associated need for information and assessment etc.) could be at best avoided and at worst substantially reduced. The ease with which this can be done is linked to the availability of data and/or sensitivity mapping etc. to guide early consideration of environmental impacts and the availability of relevant Natural England, consultancy and other expertise to front-load the process in this way. Sites 6.4 Avoidance is always the best form of mitigation and strategic planning is therefore the best way to avoid or reduce the potential effects of development on Natura 2000 sites. Strategic planning can also allow for the effective mitigation and compensation of impacts where required and appropriate. For example, on the Humber Estuary the Flood Risk Management Strategy identifies both flood defence requirements for the estuary and its hinterland, and associated compensation sites for delivery over the next 50 years. This facilitated Treasury funding and a streamlined consenting process for the individual projects encompassed within the plan (see Humber case study in Appendix D). However, the failure to adequately assess the potential impacts of multiple onshore windfarm applications around the estuary during development of the Regional Spatial Strategy for Yorkshire and the Humber, and therefore to take a strategic approach to their deployment, has resulted in multiple applications having overlapping and cumulative effects on multiple Natura 2000 sites. This is turn has resulted in substantial survey requirements and associated delays in consenting processes (the importance of strategic planning in this context will be examined further in the submission by WWF). 6.5 Our experience of working with the Habitats Regulations process has demonstrated that in the majority of cases there is an evolution of approach over time, as industries and the associated decision-making authorities develop their understanding of the process. This is perhaps best demonstrated in the ports sector. Ports are unusual for the proportion of developments that require assessment under the Habitats Regulations, as a result of the location of ports facilities on major estuaries that are amongst the most important wildlife sites in Europe. In this industry evolution to a mature approach to the Regulations has seen a number of major developments with substantial impacts progressed without undue delays or conflict (the RSPB submission will examine the evolution of approach in this sector in more detail). Once seen as the strongest opposition to the Nature Directives, most of the industry now works closely with Natural England and with the NGOs and is widely promoted as an exemplar of how major industry and nature conservation can survive and thrive in close proximity. As in any sector, though, the extent to which individual operators have evolved in their approach does vary (see the Humber case study at Appendix D for a range of port development examples). 6.6 In some circumstances, assessment of impacts under the Habitats Regulations is particularly complex. For example, where there are a significant number of small proposals, each will, on its own, have a limited effect, but when combined they can have adverse effects on the integrity of a Natura 2000 site. A range of such circumstances have driven innovative approaches, such as that developed in the Thames Basin Heaths (see Appendix D), where a framework was developed to enable development to proceed in a way that would not have been possible without a strategic approach. There are a range of initiatives which are attempting to adapt this best practice approach to other environments (see for example the South Humber Strategic Mitigation Strategy in the Humber case study at Appendix D). Species 6.7 Some development activity may give rise to activities which could trigger EPS offences; to proceed with such activities would risk criminal liability. Since there are no longer any legal defences in the Conservation Regulations 2010 which a developer could rely upon (these were 11

12 removed in 2007 as a result of the Court of Justice's ruling in Commission vs UK C-06/04) the only option for the developer to proceed lawfully is to obtain an EPS license from Natural England. 6.8 Where an EPS license is required for development purposes the applicant must usually base the licence application on the statutory purpose at Regulation 53(2)(e) "preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences for the environment." 6.9 To grant an EPS licence, Natural England has to be satisfied first that the statutory purpose relied upon by the applicant has been met. Then Natural England also has to consider the two further tests under Regulation 53(9): that there is no satisfactory alternative; and that the action will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range The outcome of implementation of the Habitats Regulations for EPS should be the maintenance of, or restoration to, favourable conservation status. The detailed process necessary to achieve this may vary between different species depending on the size of their population, distribution and ecological requirements. Guidance will need to be specific to different species and advice will need to be tailored to specific circumstances Clear domestic guidance on the EPS offences under the Regulations is essential to inform successful implementation of the EPS protection regime, but there is currently no up-to-date guidance on the key criminal offences under the Regulations. For example, the only guidance on EPS and disturbance dates from (i.e. prior to the significant 2009 amendments to the Regulations), there is no guidance on damage and destruction, and JNCC guidance on protection of marine EPS consulted on in 2008 has yet to be published (this issue is addressed in further detail in the legal advice to the RSPB at Appendix A) Many developers complain about the EPS licence application process (e.g. the delays, the lack of availability or willingness of Natural England staff to provide advice, the "further information requests" made by Natural England in circumstances where relatively small problems have arisen and clarity could have been obtained from the licence applicant by phone). However, Natural England is working within the constraints that its budget and expertise allows and to the extent that these complaints are valid, they could be satisfactorily addressed with additional funds, skills development and retention. This issue is therefore not one of law or interpretation, but rather to do with capacity and resources That said it can be argued that the process for dealing with EPS licensing in the context of planning permission should be reviewed. There is a need for full planning permission before a licence is granted, and there can be a mismatch between the needs of EPS in the planning consent and that needed for gaining a licence. There should be a consistent approach, as the conditions required for EPS licensing should be required by planners if (a) planning is delivering Sustainable development and (b) if the decisions made by planning authorities can give due consideration of the three tests needed to comply with the Habitats Regulations There are some examples of good practice in this regard. Some authorities (e.g. Denbighshire County Council with Countryside Council for Wales) have developed proformas that ensure that their planning decisions are consistent with their duties under the Regulations (something that is far from universal). In Dorset, a protocol was adopted that enabled the County Council to 24 Disturbance and protected species: Understanding and applying the law in England and Wales. A view from Natural England and the Countryside Council for Wales 25 See 12

13 review applications providing pre-application advice and a framework to ensure greater alignment with the planning and licensing system (further details of this example will be provided in the Bat Conservation Trust (BCT) submission). The success of this approach is reliant on the presence of in-house ecological expertise to review applications and ensure the appropriate level of information is supplied. It provides a safeguard to ensure that applicants are being provided with a good standard of advice from the professional consultants they employ However, such approaches do not preclude a different interpretation subsequently being given by the licensing authority thus bringing uncertainty as to whether a licence will be issued or sometimes creating a different requirement for licensing than has been conditioned by the planning permission. However, without the input of ecological expertise ahead of granting planning permission, there is a risk of planning authorities failing to fully address their functions in assessing compatibility of planning permission with the needs of the Habitats Regulations. This presents a risk that planning decisions could be unnecessarily quashed if local authority decisions are not compliant with Article 16 of the Habitats Directive We suggest that consideration should be given to agreeing the licensing method statement as part of the planning permission and not as a subsequent exercise. This would require earlier and more consistent agreement of ecological issues and clarity of expected outcomes. It would give more certainty to developers and consultants. However, this is reliant on the simultaneous strengthening and improvement of professional standards across the board We are aware of concerns about the complexity of the EPS licence form and specifically the level of attention to detail and the overly prescriptive nature of the requirements in implementation/ method statements. There is an over-reliance on guidelines to prescribe activity and insufficient focus on agreeing necessary outcomes. A conservation status plan developed, e.g. by predictive mapping, and the better use of data/ expert opinion discussed with statutory agencies would allow a better direction for conservation work and a better basis for agreeing necessary measures (e.g. survey) earlier, and with more focus on the conservation outcome than tick box compliance There does appear to be a "disconnect" between the manner in which Natural England licences homeowners to exclude bats from their homes on "public health and safety" grounds (this being a scheme operated together with bat workers and the BCT) and the manner in which Natural England treats bat exclusion for development purposes. There is generally no requirement for the provision of compensatory habitat when bats are excluded from homes for this reason and yet the "maintenance of favourable conservation status test" applies equally. There is also concern that at the level of scrutiny applied to the public health ground or the alternatives tests in these situations. This could be argued two ways: that Natural England is being too relaxed with homeowners (albeit for understandable reasons as Natural England would rather work with homeowners to encourage cooperation over bats); or that Natural England is being too strict with developers where this way of working (perhaps for low level impacts) could potentially be adopted. The introduction of a class licensing system, further research into the impact of exclusions, and provision of training to extend the volunteer advice system remit to include low level impact developments could all help to redress this balance whilst maintaining safeguard against inappropriate application (see BCT response) It is important that Natural England applies the no satisfactory alternative test consistently and rigorously in relation to EPS license applications Natural England is developing its thinking over the idea of issuing class licences (i.e. a type of general licence) for low level impact activities which require a licence, instead of requiring individual licence applications in every case. Consideration could be given to the limited use of 13

14 class licences subject to careful requirements on registration, reporting and operator experience/competence Any significant changes to the implementation of EPS licensing should be accompanied by the development of statutory conservation action plans aimed at achieving favourable conservation status as a response to the obligation to take requisite measures to establish a system of strict protection for EPS There are significant concerns regarding the efficacy of mitigation and compensation required by Natural England for EPS, the lack of effective monitoring of these measures, and associated feedback loops to ensure that the results of monitoring are used to validate or improve the efficacy of such measures Consideration should be give to the development of strategic approaches to the provision of mitigation and compensation at ecologically appropriate spatial scales, which (compared to the current piecemeal and development-specific approach) could better provide for the maintenance or restoration of populations to favourable conservation status and also provide a more cost-effective solution for developers The National Trust has commissioned a review of the success or otherwise of mitigation when EPS licences are issued to do with bats and buildings works to be completed in late spring 2012, and the results made available on the BCT s website The RSPB has also undertaken a rapid review of its experience of the EPS licensing regime in its capacity as a developer and land manager, the results of which are presented at Appendix C. In the majority of cases the RSPB s experience has been good, but other key findings reflect and add to the points raised above: The need for suitable guidance; The lack of determination of favourable conservation status, which means that activities with negligible population effects are still liable to prosecution; The lack of long-term view, which can hamper the long-term conservation gain for the species concerned There are serious concerns regarding adequate enforcement in relation to EPS. Planning conditions often lack teeth, and there is a need for better recording and monitoring of wildlife crime to produce meaningful information on the extent of infringements. Police resources to deal with wildlife crime are constrained, wildlife crime often proceeds without prosecution, and those who inform Natural England or the police of wildlife crime often see no action. These are of course problems of training, resources and implementation, rather than of law. Furthermore, many species offences go unreported which is why the RSPB and the BCT have investigations units Where offences are committed, sentencing should be based on the context and reparation sought in creative ways that are both dissuasive and proportionate, and we recommend the need to review sentencing to achieve this. 7. Capacity Building 7.1 Capacity to engage with Habitats Regulations process amongst developers, competent authorities and Natural England (as well as other stakeholders) in terms of both resources and relevant legal and ecological expertise is key to effective application of the Habitats Regulations to development, to achieve the best possible outcomes for both nature conservation and 14

15 sustainable development. When considering examples of innovation and best practice, proactive and genuine engagement and relevant experience and expertise are recurring themes. Equally, when considering those cases where serious conflicts do arise, a lack of genuine engagement and/or expertise, along with data and evidence issues, often lie at the heart of the problems identified. Key issues here are resources, skills, training and attitudes. 7.2 Significant concerns around capacity building include the absence of ecologists in many local authorities, the variable standards of ecological consultants and the lack of accreditation. In addition, the ability of Natural England to act as an independent scientific advisor, with sufficient expertise and resource to service proactive and front-loaded engagement in development proposals and license applications, is critical to the effective, consistent and streamlined implementation of the Habitats Regulations. 7.3 There have been significant reductions in the quality and consistency of Natural England s advice associated with reductions in its confidence, budget and the numbers, experience and technical expertise of front-line staff dealing with Natura 2000 and EPS issues. Experience suggests that the provision of advice by Natural England at the local level has diminished, and the level of dialogue and expertise required to resolve issues when they arise is no longer embedded in the process. The most recent restructure of the organisation may provide an opportunity to repair some of the damage done in this regard over recent years, and the planned introduction of charging for non-statutory (e.g. pre-application) advice could drive improved engagement and consistency, although this benefit will only be realised if there is a substantial increase in the numbers, experience and expertise of staff on the front line. 7.4 There is a clear need to improve the quality and consistency of advice and implementation across the relevant sectors, a point which came across loud and clear at the 18 January 2012 Defra Review Stakeholders workshop. Consistent and informed advice is needed by developers and applicants from all those involved in the implementation of the Habitats Regulations. This means standards and knowledge need to be raised, reviewed and enforced within the private sector and local authorities, as well as in Natural England: Training and professional standards should be introduced and more rigorous assessments applied, including to individuals seeking to obtain personal EPS licences. To this end we support Natural England s development of earned recognition and class licences, which should improve standards and implementation Decision making bodies charged with the review and assessment of planning applications should have direct access to expertise in ecology and the environment. Local planning authorities must have access to expert ecologists to help them make informed decisions, either in-house or via service level agreements with neighbouring authorities. In addition to facilitating the effective and timely application of the Habitats Regulations to proposals, this will also provide a safeguard to ensure that applicants are being provided with a good standard of advice from the professional consultants they employ, as in some instances bad professional advice will lead to delays or even judicial review. Linked to this is the need for greater clarity of roles and for better integration between statutory bodies, competent authorities and the police. 7.5 In addition, better use should be made of existing support structures such as volunteer schemes and advice systems that exist to improve the evidence base, compliance and good practice, including better training and investment in the volunteer support networks that currently alleviate burdens on the developer, licence applicants and statutory bodies. 15

16 8. Communications and Awareness 8.1 In addition to the availability of clear guidance and high quality ecological advice and expertise, experience shows that when responsible developers and competent authorities understand and value the importance of the sites and species protected, and are familiar with the legal process designed to protect them, early engagement with Natural England and NGOs and an understanding of likely impacts results in reduced conflict and more rapid resolution of any issues. 8.2 We therefore recommend that the Government takes this opportunity to restate its commitment to the conservation of sites and species of European importance, to promote the value of these natural assets (both intrinsic and economic), to promote best practice solutions in the handling of development which may impact upon these and other biodiversity assets, and to increase pressure upon those developers and competent authorities which fail to embrace best practice approaches. 8.3 In order to develop innovative and best practice solutions to some of the challenges posed by the need for sustainable development and for effective conservation action (including application of the Habitats Regulations), it is essential that the exchange of information and experience, both within and across the UK countries and between Member States is supported. Networks such as the Econat2000 network, which brings together experienced practitioners in the field of development affecting Natura 2000 sites and EPS from across north western Europe have real value in this respect EU and devolved implementation 9.1 EU and devolved implementation issues will primarily be addressed through the individual submissions of Link members to the review. For example, the RSPB and WWF will submit evidence in relation to EU implementation, and the Whale and Dolphin Conservation Society response includes a case study examining shortcomings in application of the law in Wales in relation to scallop-dredging. 9.2 Anecdotal evidence would suggest that the application of the EPS regulations may be stricter in Scotland and Wales than it is in England. 9.3 In 2009, the RSPB commissioned and published a review of positive planning for onshore wind to review different approaches to expanding onshore wind energy capacity whilst conserving nature. 27 Whilst not looking only at habitat and species of European importance its key findings reflect many of the issues raised in this response (the importance of early engagement, of appropriate institutional resourcing and knowledge, of taking a strategic and spatially explicit approach and of high-quality impact assessment). It also includes a comparison of planning approaches in the UK and in Spain, Germany and Denmark. Its findings would seem pertinent to the current review. Wildlife and Countryside Link February The Econat2000 network was established by 4 members organisations from both the nature conservation and economic development sectors in 4 European Member States and held a series of topic-specific workshops and seminars between 2007 and 2010, bringing together experts from across a number of Member States to compare approaches, identify shared problems and highlight best practice in application of the Birds and Habitats Directives. See:

17 Appendices A. Legal advice to the RSPB on EPS regulation DLA Piper UK LLP is an international law firm providing legal services to a wide range of public and private sector clients. Within the UK, DLA's Safety Health and Environment (SHE) Group, headed by Teresa Hitchcock, provides both environmental and health and safety legal services to its clients in sectors as diverse as manufacturing, energy, developer, consultancies and public authorities. One of the SHE Group's particular specialisms is in relation to natural environment law. Penny Simpson of DLA Piper's SHE Group advises a range of developers, environmental consultancies, public authorities and non-governmental organisations on all aspects of this area of law and in particular on protected sites and protected species issues. She is the Chairperson of the Nature Conservation Working Group of the United Kingdom Environmental Law Association and is the provider of many legal training courses on these issues on behalf of the Institute of Ecology and Environmental Management. DLA Piper UK LLP was requested by the RSPB to provide advice on (i) the adequacy of transposition in England (by the Conservation of Habitats and Species Regulations 2010 ("Conservation Regulations 2010")) of Articles 12, 13 and 16 of the Habitats Directive relating to European Protected Species ("EPS"); and (ii) comments on where changes could be made in implementation of the Conservation Regulations 2010 by the relevant authorities in relation to development. 17

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38 B. Whale and Dolphin Conservation Society s legal review of the efficacy of provisions for the protection of cetaceans: summary of findings Whale and Dolphin Conservation Society (WDCS) have commissioned a legal review of the efficacy of provisions for the protection of cetaceans, including those under the Habitats Regulations. This is due for imminent publication, and will be provided to Defra once available. It concludes that whilst the legislation covering the protection of cetaceans and their habitats in the UK has changed considerably in recent years, mainly driven by EU legislation, it still does not provide a comprehensive and ecologically sound structure to ensure the long term favourable conservation status of our whales, dolphins and porpoises. Overall, there is a lack of coordination across different sectors, with markedly different approaches from the different licensing and regulatory bodies. This not only leads to confusion for other users of the marine environment, but also means there is no comprehensive package of protection for cetaceans. The statutory nature conservation agencies currently largely rely on marine users approaching them in order to provide advice on legislative responsibilities. An example of this includes the Ministry of Defence, which only began formally communicating with JNCC in 2010 and had previously, we believe, been making decisions about legislative responsibilities solely within its own departments. Other sectors, such as ports and harbours, are subject to a complexity of legislation, which could impact on nature conservation issues. Historically, the UK has applied a very site-based approach to UK conservation. However, meaningful boundaries at sea are difficult to define, and, in any case, mobile species, including cetaceans, are not simply confined to such geographic boundaries, although as noted earlier, particular areas may be important to them. For the two cetacean species currently listed in the Habitats Directive Annex II as requiring the designation of SACs, harbour porpoise and bottlenose dolphin, there is still no coherent network of protected sites proposed. There are none currently proposed in the UK for the former and only three established for the latter with no new proposals. In addition, although there is likely to be more scrutiny of a proposal for an activity within a protected area, there is growing concern about the extent of effective protection afforded to these sites. Despite the requirement under Article 12 of the Habitats Directive, to establish a system of strict protection, there are few obvious robust and enforced mechanisms that would put a stop to all forms of deliberate capture or killing (e.g. bycatch); deliberate disturbance, particularly during the period of breeding, rearing, hibernation and migration (e.g. licensing, mitigating and limiting noisy activities such as seismic survey work within areas known to be important to cetaceans), nor measures to stop deterioration and destruction of breeding sites or resting places outwith SACs. 18

39 C. RSPB review of EPS experience on reserves 1. Introduction The RSPB manages 104 reserves in England, 66 of which support European Protected Species (EPS). In recent years, c75% of the RSPB s land acquisition has been for the purposes of habitat restoration, meaning that the RSPB has become increasingly involved in large-scale habitat change. The RSPB therefore has experience of the EPS licensing regime in its capacity as a developer and land manager. As a contribution to the Link response to the Defra Review of Birds and Habitats Directive implementation in England, the RSPB has undertaken a rapid review of its experiences of the EPS licensing system, and the key messages that arise from this experience. 28 In section 2 below, key messages are illustrated using relevant examples from case studies which are described in more detail in Section Key messages arising from the RSPB s experience of EPS in its capacity as a developer and land manager i) In the majority of cases RSPB s experience is good Examples: Shorne Marshes: scrub clearance and large population of great crested newts: early survey work, consultation with NE and adaptation of work programme to minimise disturbance. No licence required. Minsmere: changes to building and bat roost: survey, assessment of design, methods and timing of operations in relation to potential disturbance. Written advice from consultant. Middleton Lakes: vegetation clearance to create new paths near where great crested newt recorded: NE s advice sought and timing of work adjusted to avoid disturbance. ii) There is a need for suitable guidance Examples: Little Whirlpool Ramshorn snail, Anisus vorticulus: Requirement for an agreed management protocol for the maintenance of ditches and other water-bodies (protocol still in draft). Dormouse and tree clearance for heathland regeneration at Broadwater Warren: guidance on tree clearance relates to forestry operations and is inappropriate for habitat creation schemes. The statutory agency guidance for felling in woodlands with dormice is to avoid felling more than a third of the area of habitat in the woodland, less for small woods, and retain remaining areas of habitat for at least 5 years. The five year gap between felling blocks of woodland may be applicable to clear-fell forestry operations but is less relevant to heathland creation schemes where the general approach is to fell relatively small areas of conifer (much less than a third) annually so as to gradually increase the area of regenerating heathland. Rather than applying this guidance rigidly, a degree of pragmatism would allow wider conservation gains for heathland-dependent species and still enable dormouse conservation as it could be argued that the gradual clearing of an area of conifers, especially starting from the centre and moving outwards, is more likely to sustain 28 It has not been possible to undertake a comprehensive assessment across all our reserves, but the rapid review is considered broadly representative. 19

40 a population of dormice than the clearing of a large block of trees followed by 5 years of no clearance. iii) Lack of determination of Favourable Condition Status, with the result that carrying out activities with negligible population effects are still liable to prosecution Examples: Little Whirlpool Ramshorn snail, Anisus vorticulus and routine ditch management. To maintain suitable habitat for the snail, ditch management is required to prevent them becoming completely vegetated and drying up. During this management, disturbance and potential destruction of individual snails is unavoidable and therefore needs licensing, yet is unlikely to have population effects. Dormouse and tree clearance for heathland regeneration at Broadwater Warren. Given the amount of suitable habitat in the surrounding area (including broadleaved woodland being actively coppiced by Sussex Wildlife Trust) there is likely to be a large local population of dormice so the effect on the overall population of removing c40ha of conifers is likely to be very small. In addition it is likely that dormice would rapidly recolonise the area from the neighbouring areas once suitable habitat has developed. iv) Lack of long-term view can hamper the long-term conservation gain Example: Dormouse and tree clearance for heathland regeneration at Broadwater Warren. In the long-term the habitat produced through the heathland recreation scheme is likely to be better for dormice than the existing conifer plantation which is generally considered suboptimal. 3. Illustrative case studies Great crested newts and habitat management at Shorne Marshes, Kent Great crested newts occupy large numbers of ephemeral explosion crater ponds surrounded by scrub. RSPB wanted to manage the scrub to provide aestivating sites (damp places to lie dormant during hot weather) for the newts and to prevent over-shading of the ponds. A survey in 2006 estimated a population of over 1000 adults. NE s advice was sought and a system of rotational scrub management was initiated with 10-15% of the scrub coppiced each winter. No licence was required. Great crested newts and creation of new paths at Middleton Lakes, Staffordshire This is a gravel pit restoration site. RSPB wanted to clear vegetation to create new paths 100m from where great crested newts had been recorded. NE s advice was that no licence was required provided the work was carried out over winter prior to March. Bats and the Discover Nature Project at Minsmere, Suffolk As part of the Discover Nature Project three buildings were being replaced or improved and a bat survey was commissioned to assess the buildings. They included the work-centre where a summer bat roost was found in the loft. It was established that the roost was not being used over-winter so the working methods and timing of operations were adjusted to ensure the work was completed before March/April to minimalise the chance of disturbance. Because of potential concern that access could be affected by the new build being added to the work centre, new access points were installed prior to any work commencing. Access to the roof-space was maintained throughout. 20

41 Little Whirlpool Ramshorn snail, Anisus vorticulus, and routine ditch maintenance at Pulborough Brooks and Amberley Wildbrooks, West Sussex This small snail (4-7mm) has a restricted distribution but where present it can occur in large numbers. Ditch management involves removal of silt and vegetation, therefore the disturbance or potential destruction of individual snails is unavoidable and a licence is required. At present there is no published best practice guidance for mitigation. RSPB carries out ditch management on rotation and only clears small sections where the snail is known to be present. Repeat surveys suggest the population is being maintained and expanding. Dormouse and tree clearance for heathland regeneration at Broadwater Warren, Kent RSPB planned to remove conifers from a Plantation on Ancient Woodland Site (PAWS) but dormice were found to be using the young conifer plantation. Contractors were employed to survey the whole site and NE and FC consulted. A mitigation licence was required involving substantial changes to the planned schedule of work, increasing the time taken to restore the heathland. In the long-term the habitat produced is likely to be better for dormice than the existing conifer plantation which is generally considered sub-optimal. Good dormouse habitat should develop from 5 years after the felling of conifers with the creation of glades with bramble and the restoration of coppice. In the meantime, a dormouse population is being maintained through the use of nest-boxes. Staggered ditch clearance for Anuisus vorticulus at RSPB s Pulborough Brooks reserve 21